Angela Wu [Acting Executive Director, International Law Director, The Becket Fund for Religious Liberty]: "The Supreme Court recently overturned Board of Immigration Appeals and Fifth Circuit rulings in Negusie v. Holder and found that victims of persecution who are forced to participate in persecution may be entitled to asylum. Petitioner Daniel Girmai Negusie is an Eritrean-Ethiopian Christian who was forcibly conscripted into Eritrea's war against Ethiopia and forced to serve as a prison guard to tortured inmates. He at times out of conscience attempted to aid some of those he guarded, for which he was punished. The decision can be considered a victory for Negusie, who now has another chance at asylum. However, the Court's decision leaves to immigration authorities the ultimate question of "whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal" under the Immigration and Nationality Act (INA).

The Court's decision hinged on principles of statutory interpretation more than the equity of Negusie's situation. The Court found that the BIA and Fifth Circuit erred in applying Fedorenko, which found that under a different statute, the Displaced Persons Act of 1948 (DPA), "an individual's service as a concentration camp armed guard — whether voluntary or involuntary — made him ineligible" for protection. Because the BIA based its holdings on the (erroneous) belief Fedorenko bound the outcome of Negusie's case, the Court determined the BIA had in fact not interpreted the statute at all, as it should have in the first place. Therefore the BIA's decision deserved no deference under the Chevron doctrine, stating that courts should defer to administrative agencies in matters of statutory interpretation. The Court reversed and remanded for the agency to "interpret the statute, free from error."

The question posed by Negusie — the culpability of those who participate in harming others under coercion — raises, as Justice Scalia puts it in a concurrence emphasizing that the BIA is free to interpret the persecution bar as having no exception "so long as the choice to so is soundly reasoned" and not based on Federenko, "profound questions of moral philosophy and individual responsibility."

In considering the substantive question before it, the BIA now must not only interpret the statute independent of Federenko's DPA-specific ruling, but has within its power the ability to define, if it recognizes a persecutor bar exception, the parameters of that exception. In doing so, it should consider the realities of how authoritarian regimes exercise their persecution.

The Becket Fund argued in its amicus brief [PDF File] that American asylum law should recognize and condemn the evil of forced participation in persecution of fellow prisoners. The brief argued that forcing prisoners to persecute one another is a particular method authoritarian governments use to invade the sphere of conscience. The Becket Fund's brief was joined by a diverse coalition including the American Islamic Congress, Catholic Legal Immigration Network, Inc., International Society for Krishna Consciousness, and United Sikhs.

Historical examples of such targeted torture abound. For example, the Romanian Communist government used Pitesti prison outside Bucharest for the violent reeducation of political and religious prisoners from 1949-1952. Prisoners were compelled to confess their own crimes against the state and to betray others. They were required [source] to:

blaspheme and renounce their deepest emotional ties and spiritual convictions: "I lied when I said 'I believe in God.' "I lied when I said, 'I love my mother and my father.'…Christians were compelled to participate in blasphemous versions of Romanian Orthodox liturgical rites: a parody baptism was performed as their heads were dunked in a bucket of urine and feces.

But in the final phase of several stages of psychological torture,

"prisoners were required to prove their full conversion by torturing other prisoners, including their best friend…. This ingenious step insured that the spirit would be utterly broken, and that distrust and misery would make cooperation in an uprising much less likely."

Coerced participation is itself a form of persecution aimed particularly at psychological devastation, as it carries with it the intuition of the victim's own spiritual failure, self-loathing, and despair, and should not be implicitly protected by a persecutor bar that recognizes no exception for duress. Further, asylum law should be not only a judgment about the blameworthiness of the asylum applicant, but also a moral condemnation of the government the asylum applicant flees. To recognize otherwise would create a particularly perverse incentive: authoritarian governments would see an advantage in setting religious believers to torture one another, since that would automatically disqualify them from gaining asylum in the United States."